api 


Return this book on or before the 
Latest Date stamped below. A 
charge is made on all overdue 
books. 


U. of I. Library 


Tac HOT’ aY 
OF Tht 
MRIVEHSITY GF IhkIRoIS 


TO THE 


t 


fue 


- hime 
& So WA evnre 


DISASTER 


TO THE 


NEW YORK CENTRAL RAILROAD. 


DECISIONS OF THE GENERAL TERM OF THE SUPREME COURT, IN THIRD 
JUDICIAL DISTRICT, SEPTEMBER, 1859, 


— oor ee ero 


Standing in a column of decisions just announced, undis- 
tinguished from ordinary adjudications by this tribunal, are 
certain ones which, nevertheless, are remarkable enough to 
entitle them to special notice. They are stated thus: 


“In the Matter of the Application of the New York Centrau 
Raitroap Company to vacate the award made between 
said Company and Georee H. Cruarx. Order of Spe- 
cial Term, denying motion to vacate, affirmed.” 


“In the Matter of the Application of Grores H. Crark to 
confirm the award between said Clark and the New 
York Centra Raitroap Company. Order of Special 
Term, confirming award, affirmed.” 


Z@ © Georce H. Crarx agst. Tas New York Centrau Raiiroap 


oe 


AD’ od, 


x 


Company. Judgment entered on award of arbitrators, 
affirmed.” 


It is always agreeable to contemplate Courts of Law in- 


soterposing to protect one individual against wrong and injury 


726631 


attempted by another, but the feeling is raised to admira- 
tion when such tribunals use the power confided to them to 
save private worth from oppression and injustice at the 
hands of associated wealth and power. ‘To rouse the grati- 
tude of the public, as well as its applause, because of these 
heroic decisions, and also to admonish such Corporations as 
are accustomed to have money not to attempt to withhold it 
from private persons notoriously honest and greedy, a brief 
history of the attempt at fraud in the cases in question, and 
of its signal defeat by the Judiciary, is appended. Stock- 
holders in the corporation implicated are not expected to 
read it. 


In January, 1853, Elisha Morse, of Waterford, Henry 
Patrick, of Rome, and one Merrit Potter, purchased from 
Messrs. Huntington, of Rome, a lot of woodland lying on 
both sides of the Rome and Watertown Railroad, some three 
miles out of Rome; from which lot they cut about 50,000 
cubic feet of lumber, between December, 1853, and March, 
1854. 

In December, 1854, they sold the land to George H. Clark, 
of Schenectady, but Henry Patrick, after the sale to Clark, 
cut and removed about 115,000 feet of hewn and round tim- 
ber. One-third of the wood on the lot was thus cut into 
timber ; and, as a matter of course, the wood so cut was the 
very best on the track. 

The New York Central Railroad had been sagacious 
enough to choose its Superintendent from the very city 
which Mr. Clark had had the taste to select as his abiding 
place—Schenectady. A city honored by the venerable Dr. 
Nott for fifty years, it is submitted, will relieve any man 
from explaining how or why he came to live there. The 
Court seems to have appreciated properly the coincidence of 
locality. It is not surprising, therefore, that the Superin- 
tendent, oppressed by the duty of furnishing material for the 
consumption of the Railroad Company, finding he could do 


‘Si 


more to that end there than elsewhere, did buy wood in 
Schenectady, and from a citizen of Schenectady. 

In November, or December, 1854, the SuperinrTENDENT OF 
THE Centrrau Rartroap, Mr. Vissarp, made a contract with 
Georce H. Cuark, by virtue of which CLarxk was to deliver to 
the Company, from the lot in question, a quantity of wood; not 
to exceed 12,000 cords per year, at the price of $3 per cord— 
the wood to be delivered upon the lot; to be suitable for the 
use of locomotive engines; sound; properly cut and split, 
and free from small limbs. It does not clearly appear by 
the testimony, whether this contract was made before or 
after the purchase of the wood lot by Cuiarx, which was in 
December, 1854. Mr. Vissarn’s memory of the time oscil- 
lates between November and December of that year, which 
is unfortunate, seeing pen and ink is not used in Schenectady, 
“between man and man,” business of a certain sort being 
done there “upon honor.” It is curiously illustrative of the 
primeval purity which subists in that city, that a contract of 
this magnitude between two of its citizens needed not to be 
put in writing, and therefore was not. So beautiful an ex- 
hibition of mutual trust and confidence carries the mind of 
the profane back to the age of chivalry, but the pious will 
scarcely halt in their meditations this side of the Fall of 
Man. If Mr. Vissarp had bought wood in Paradise, his con- 
tract with Apam would have been in this form. The Court 
seems to have been overwhelmed by the moral beauty of 
the transaction and marked its approbation of verbal con- 
tracts, made in Schenectady, by giving to this one a force 
quite beyond the power written contracts command. Can it 
be that the Valley of the Mohawk is the ancient Eden—is 
Union College itself but a sucker “ from the tree planted in 
the midst thereof ?” 

It was obviously proper that for a “’pon honor” contract 
a’pon honor “ Woop Measurer” should be provided; and 
such an officer had been added to the staff of the Central 
Railroad Company. It was quite as proper that the city of 


refuge for honest men, Schenectady, should be drawn upon 
to furnish an incumbent for the new office; and furnish one 
she did, in Mr. Perer Dorscu. Saturated, soggy, dozy even 
with that solemn warning to all measurers, that, “such 
measure as ye mete to others shall be meted to you again,” 
he so measured that, if the promise fail not, he is heir to the 
most stupendous of wood piles where the poorest will be rich 
at least in fuel. The contract and he seem made for each 
other. The Paymaster of the Company appears not to have 
been a Schenectady man, and after the custom of the world 
outside of that city, required vouchers from CuiarxK for such 
payments as might be made to him. But for this innovation 
by the Paymaster, the business might have gone on indefin- 
itely, as it was begun, without any indebtedness whatever to 
the art of writing. The Woop Measurer, whose salary is not 
stated and was perhaps the subject of another verbal contract, 
made in Schenectady, conformed to the requirements of the 
Paymaster, and set his hand to certificates, that he had in- 
spected and measured 238,397 5° cords of wood, delivered by 
CuarK to the Centrat Raitroap Company, between January 
5, 1855, and December 20, of the same year! Upon these 
certificates, endorsed by Vipparp, Ciark received from the 
Company the sum of $69,504 78 ! 

Crark’s zeal to deliver wood to the Company is most conspic- 
uous, when what he did in that behalfis contrasted with what 
his contract required him to do. Upon his delivering 12,000 
cords in a single year he might have betaken himself to the 
repose which so severe labor could scarcely fail to render 
grateful; yet, it is abundantly established by the certificates 
of Dorscu, re-endorsed by Vissarp himself, that in less than 
that term Cuark delivered to the Company more than Twenty- 
THREE THousanp Corps! And so, relatively, of the money. 
Thirty-six Thousand Dollars was all that this Company could 
require CLARK to receive in any one year ; yet, it is undenied, 
that in less than that time it remorsely thrust upon him 
nearly Seventy Tuousanp Doutiars! Inconvenient as it may 


ee a 


be to want money,it is also embarrassing to have it come upon 
one faster than it can be satisfactorily invested. Besides, the 
plethora of money, which must have very nearly driven the 
Company to apoplexy about those days, ought to have been 
relieved without recourse to innocent parties like Cuark, for 
there is no evidence whatever that he was a SrockHo.per, 
or that he was in any way bound to suffer for the misfor- 
tunes of the Company. Since the celebrated English case 
recorded by Hawkesworth, where the Churchwardens and 
Vestrymen certified that they wore a truss which cured a 
bad case of hernia in one of their parishioners, there has 
been no parallel to this of Ciark; and it will be difficult to 
frame a valid excuse for the Company in the face of the fact 
that the Company’s own counsel would have advised it, that 
notwithstanding the novelty of the thing, it had a legal right 
to compel the Stockholders to receive a dividend paid from 
their own money. Crark should have been spared the 
taking of this money, not the SrockHoLpeErs. 

It is painful to observe that all this diligence and complai- 
sance on the part of Clark, did not save him from a notice by 
Vipparp, 7x October, 1855, that the price of his wood must 
hereafter be reduced fifty cents per cord! Crark’s reply to this 
unreasonable requirement is admirable both for sense and 
Spirit; quite worthy, indeed, of the best days of that Rome, 
which so far from possessing but one Stryker and he stricken, 
held not a male citizen who was not a striker :—* He would 
not take $2 50 when he had a contract for $3 per cord!” 
Seeing that outside of Schenectady the contract was void by 
the Statute of Frauds, it being an oral contract for the sale 
of growing trees, the mnoral courage exhibited by Crarx is 
quite imposing. Vissparp must have thought so, for in the 
very next month, November 7, 1855, one of Dorscu’s certifi- 
cates was endorsed by Vissarp, amounting to $11,162 56, at 
$2 85; and by the 20th December, 1855, he was so chastened 
by remorse, that he endorsed another amounting to $16,057 50, 
at $3 per cord. There would be less to regret in this con- 
nection, if Cuark’s feelings had escaped as did his pocket. 


Let no one suppose that the measure of CrLarxk’s annoy- 
ances has been stated, but it will be noticed that at this 
point not a peg had protruded upon which a suit at law 
could be hung; a state of things which did not long con- 
tinue. Hints, inuendos, and rumors ripened into positive 
allegations, and at length the parties to the contract, neither 
knowing how, and to their mutual grief, came to stand as 
antagonists—the Company claiming “ that the measurements 
and certificates of measurements of said wood are not right, 
and that said Cuark has not delivered the quantity or quality 
of wood for which he has received certificates of measure- 
ment and payment, and that he now holds a certificate of 
measurement which should be delivered up to be destroyed 
or cancelled ;” and also, “ that the price paid for said wood 
to said Cuark is more than it should have been, and also that 
said Ciark owes said Company for over-payments, on QUAN- 
TITY, QUALITY AND PRICE, as aforesaid, and justly should refund 
to said Company:” and CLark maintaining the converse of 
each proposition. The parties agreed finally to submit the 
controversy to arbitration. 

There is too much reason to apprehend that, in the selec- 
tion of arbitrators, CLArK was allowed little or no voice. 
Perhaps, as often happens, he was overawed by a wealthy 
and powerful corporation. Nothing but the result of the 
arbitration saves the Prestpent from severe condemnation 
for having named as arbitrators, gentlemen whose relations 
to the Company were such as ought to have excluded them 
from such a position. Two of them were in the pay, cer- 
tainly, and perhaps in the service of the Company, and the 
THIRD Was one of its own Direcrors! It is no answer to 
say, the three gentlemen named as arbitrators are, beyond 
all controversy, the most honest and intelligent at present 
concerned in the management of the Road—that will be 
cheerfully conceded—there were not probably five such 
men in all Sodom; but human prudence has established the 
rule that no man, liable to bias from interest or association, 


shall be put in a position so perilous to integrity and har- 
rowing to kind feeling. Itis repeated, that Mr. Cornine will 
owe his escape from censure for having named his own 
men as arbitrators, solely because Messrs. Davin Hamitton, 
Livineston Spraker and Biituines P. Learnep, have shown by 
their award, that if in any quarter hopes were indulged that 
they would incline toward the Company they were connected 
with, all such hopes were vain and groundless. 

The remarkable character of the award will perhaps ap- 
pear as well from a disclosure of some of the very frivolous 
grounds upon which it was sought to be set aside, as from 
those upon which the arbitrators were solicited to make it. 
Besides, it will illustrate at the same time the action of both 
judicatories, and so shorten this narrative. 


It was pretended that there was not land enough in CuarK’s 
lot to yield the quantity of wood alleged to have been delivered 
to the Company. 


The quantity of land bought of the Messrs. Huntington 
was 517 acres, of which there was occupied by the Railroad 


track, . : ; , : ’ 13 =55, acres. 
Lands cut over by Morse, & a bleak place, 17 z: 
Land cut over 30 years ago, ; . . 40 af 
Land uncut at the date of the award, . . 19 #8. 
1503, « 


Thus, the number of acres from which wood could have 
been cut for the Railroad was only 367 or thereabouts. 
From these 367 acres one-third was cut into timber, and 
was the best wood on the lot. Patrrick and Dorscu admit 
that they cut 165,000 feet of hewn and round timber from 
these 367 acres. Such men as E. B. Armsrrone, Joun Wesvt, 
Davin Uttey, Exvtzur Cuark and Josern Kwyicut, testified as 
to the quantity of wood upon the lot, and the highest esti- 
mate by them of the entire amount of it was 55 cords to the 
acre. Armstrone, who gave the most full and intelligent 


account of it, makes the quantity 40 cords to the acre, aside 
from the trees cut as suitable for timber, say 14,680 cords 
from the entire lot. 

The most extravagant of CLarx’s witnesses put it at 80 
cords to the acre, say 29,360 cords in all. 

The arbitrators, one of whom, Mr. Hamitron, enjoyed the 
advantage of having viewed the lot and its crop in person, 
evidently doubted the correctness of all the witnesses, and 
award that Cuark had delivered to the Company 32,169 cords, 
besides the hewn and round timber, which it was proved 
was equal to 5,000 cords more. So the truth must be that 
the lot yielded over 100 cords to the acre! It is strange, 
however, that Cuarx concealed a fact so important to him- 
self, and that it came out by means of the arbitrators. 


Cuark had already received from the Company as for wood 
from 867 acres . : ‘ : : . $69,504 78 


The arbitrators add 4 d y : . 24895485 
The 165,000 cubic feet of lumber, . f : 3,300 00 
Making the enormous sum of, ; . $94,580 13 


Yielded by 367 acres of wild land! Of this sum the New 
York Centrau Raiiroap conrrisutes $91,280 13! Itis clear 
enough that there are processes by which wild land can be 
forced to produce as no cultivated land everhas. What can 
be those processes? Arbitration is one of them evidently, 
but what fertilizer must be used? The odor of these arbi- 
trators excludes guano from such a triumph as this. And 
the fertilizer, be it what it may, is it applied to the land or to 
the arbitrators? The Agricultural Society is desired to look 
into this matter, because “There remaineth yet much land 
to be possessed,” and the receipts of the Road are increasing. 


The award was held to be partial, because the Company had 
not received any such quantity of wood as was mentioned in 
the certificates of measurement, which certificates had been proven 


fs 


wf 


to be false, and because it was proven that such wood as had 
been delivered was not of the stipulated quality. 


On the part of the Company it was shown that it took wood 
from the lot as follows: 


Ist. Wm. Cain drew in March and April, 1855, 358 cords 
2d. J. E. Comstock drew in May 1 to 8, 1855, . 975 = « 
3d. J. J. Rasback drew in May 8, to Dec. 27, 


546 car loads short wood, 7 cords ea. 3,822 6“ 
649 do long 6t “« « 4,056 332. « 
138 do do 64 “ “ 862 mes “6 


4th, Ed. Tiffany drew Dec. 27, to Feb. 10,56, 500 sé 


Total drawn away, . : we LOS TS ik 


There was neither evidence nor pretence that any person or 
persons, except those above named, drew wood from this lot. 
Inasmuch as Crark had been paid by the Company $69,504 78 
by the 27th December, 1855, for 23,397 cords of wood, and 
all the deliveries up to February 10, 1856, amount to only 
10,573 cords, the question arises, what quantity of wood re- 
mained on the lot undrawn ? 

The mathematician and measurer, Mr. Perer Dorscn, had 
given to Crark, as of January 17, 1856, his official cer ificate 
that Cuarx had delivered to the Company 8,905 cords of mixed 
wood, for which Cruark had rendered his bill at $2 50 per 
cord, amounting to $9,763 12. This voucher had been put 
into the hands of the Paymaster about February Ist, 1856, 
and on finding it was not to be paid that month, CiarK 
withdrew it. This is the voucher demanded by the Com- 
pany to be “given up to be cancelled or destroyed.” Cxark, 
however, contended that the wood mentioned in that cer- 
tificate formed no part of the 23,397 cords for which he had 
been already paid, and so does the award. 

The non-payment of the voucher happened on this wise : 
Director Joun F. Seymour, of Utica, called upon Directors 
Joun L. Scnootcrart, of Albany, Joseru Frey, of Rochester, 


10 


and Drawn Ricumonp, of Buffalo, to go to Rome and examine 
Crark’s wood. They made such examination, attended by 
Me. Perer Dorscu, and the fruit of it was that they “agreed 
to telegraph Mr. Pruyn not to pay any more money to Mr. 
Cuark.” In consequence of this, Mr. Pruyn, acting as lo- 
cum tenens of Mr. Cornine, who was absent, on the 3d or 
4th of February, 1856, issued an order to the Paymaster to 
pay no more money for wood delivered at Rome or Chitten- 
ango. Mr. Cornine’s absence at this juncture is to be re- 
gretted—it was probably the cause of this overt act in the 
name of the Company. It is pleasant to believe that Mr. 
Seymour’s officiousness caused him to be left out of the di- 
rection at the following election—a convincing proof that 
the persecution of poor CLarK received no sympathy at the 
hands of the appointing power in the Company. 

A further consequence of the examination malevolently 
set on foot by Mr. Seymour, furnishes an answer to the 
question just raised, what quantity of wood remained on the 
lot? Mr. H. 8. McExwarme was despatched to take an ac- 
count of the unmeasured wood upon the lot, and to prevent 
error, Mr. Perer Dorscu went with him, to point out what 
he had already measured. ‘There appeared to be but one 
lot of wood remaining there which Dorscu had measured. 
This was estimated by “area measurement,” to contain 
1,221 cords, but turned out, after being repiled and measured, 
to contain only 922 %2 cords. Now, if this wood may be ad- 
ded to the previous deliveries, and at its “ area measurement,” 
1,221 cords, there would be but 1!,795 cords received by the 
Company against 23,897 cords paid for! Where were the 
11,600 cords? And echo answers where? 

The unmeasured wood found by McEuwarye upon the 
premises, which embraced all that ever was delivered, was 
measured by him in April, 1856. His measurement was an 
approximation merely. He swears he deducted nothing for 
stumps, uneven ground, bad piling, or bad wood; while the 
proof stands uncontradicted and unqualified that from + to 


11 


+ should be deducted from a fair outside measurement, to 
ascertain the actual quantity; that when he measured the 
wood, he “ measured the area it occupied, or had the appear- 
ance of occupying ;” that his intention was “to have it re- 
moved to Albany and repiled and re-measured there, to get 
a correct measurement :’ Besides, Mr. Pruyn had direct- 
ed that the wood should be so removed and re-measured. 
A fire in the fall of 1856 defeated the removal and remea- 
surement intended, but 2,018 cords on the ground, after the 
fire, measured when moved 1,539 cords. This “ area mea- 
surement” Mr. McExuwarine made to contain 8,762 11° cords, 
which included some 3,350 cords repiled by Crark at a cost 
of the Jabor of 50 men from February 11, to March 28, and 


_from it they threw out 700 cords of culls! 


No wood, except 10,573 =°,6, as above, was taken from the 
lot until after McEiware had measured all there was upon 


it, say: ‘ : : : 8,762 11° cords. 
Add the lot not measured by him . eto ork a 
Add wood taken away . ? ; . 10,573 96,  « 
Total of wood drawn and undrawn, is . 20,557 “s 


While, by the 27th December previous, CLark received pay- 
ment for 23,397 cords! Thus all the wood ever delivered, it 
was alleged, was less by some 2,840 cords than the quantity 
for which Crark had been already paid. 

The arbitrators, however, decided that 23,397 cords had 
been delivered ; and further, that Cuark had delivered 8,762 
cords in addition thereto, which will pay Cuiark for 11,602 
cords, which the ingenuous are requested to trace to the 
possession of the Company which is required to pay for it. 
An examination of the testimony will sustain the calculation 
that the 20,557 cords overstates the quantity received by the 
Company by at least 2,000 cords. 

In ordinary cases such testimony as these arbitrators had 
before them in regard to both quantity and quality, would 
have made the decision of both points a very easy matter. 


{2 


James Stmsse testified: “I piled wood; it was not piled 
with any care, but was thrown off; when we came to a 
stump the wood was piled right over it; there were several 
piles together; after the piles were done you could not see 
where the stumps were; Mr. Parricx was back and forward 
while I was piling.” 


Joun Hoae, who chopped there in the winter of 1854 and 
’55, testified that the wood cut by him was “measured by 
Mr. Parrick, and paid for by him. “Ichopped by the cord ; 
] put in everything that would make wood ; think one-quarter 
of the wood was stumps, ‘* *,;’ by outside measurement a 
man could not tell the quantity of wood which was there.” 


Wm. Coomps testified: “ We found large quantities of logs 
in the piles all over that we could not saw; it looked to me . 
as if pretty much all the limbs were put in that grew on the 
trees of any size: we did not enquire as to folk’s contracts ; 
the wood was piled up close as it could be, one tier against 
another, so that when we came to break into a tier we 
would have to take all down together; one pile was so 
jammed up against another* * * *; the man who mea- 
sured the wood could not tell anything about the stumps or 
knolls, except where there was a single pile, and then there 
would be a single stick set up to keep the wood off the stump ; 
I don’t remember any instance where this was done, except 
in single piles; when the piles were opened we found stumps 
of All sizes up to three feet through; I should calculate that 
if ] was going to put the wood into a merchantable shape, I 
should eall six feet high four feet high ; the wood there was 
piled six feet high; I think it would not pile more than four 
feet high to make it merchantable, properly piled and suita- 
ble wood; I have always made this estimate ; when we were 
sawing we used very often to talk it over; * *™; I should de- 
duct one foot for piling, and one foot for rotten wood and 
limbs ; this was on all the piles.” 


Jacos Suanporr, the engineer who drew wood in May and 
June, 1855, testified: “ The piles of wood on the ground were 
piled so close together that you could not get in between 
them to measure them; the tops of the piles appeared to be 
level ov nearly so; when the piles were opened we found stumps, 
some brush heaps, knolls, some roots turned over, where the 


-* 


13 


wind had blown over hemlock trees, some logs; we could not 
see one of them without breaking into the piles ; in some places 
the stumps were very thick; | think the stumps would aver- 
age from nine to ten feet apart, as near as | can recollect ; 
they were principally hemlock stumps of different sizes and 
roots running from them, and the wood was principally piled 
on them; we could not see any of the stumps without break- 
ing into the piles unless it was on the first tier ; the wood 
was piled on the top of the stumps.” 


Joun J. Raspack, the conductor of the wood train which 
drew all the wood drawn {rom May 8 to December 27, 1855, 
testified: “The long (7. e. unsawed) wood I drew away was 
piled on stumps, and brush and knolls, roots of trees, and over 
logs, old logs ; the piles were in tiers fr om ten to fourteen feet 
deep ; ; Ido not recollect but one that was fourteen; they were 
piled on these stumps, and brush, and logs and knolls, and were 
piled close to each other so that a man could not get in between 
them to examine ; I should not think it possible for an external 
measurement of those piles to tell how much was in them * * * ; 
Mr. Parrick had charge of banking the wood; he was there 
and attending to tt. 


James GReEN, the engineer who succeeded Suanporr in Jan- 
uary, 1855, and Epwin Tirrrany, the engineer who drew 
wood under Raspack, and also after he quit, and in January 
and February, 1856, gives substantially the same descrip- 
tion of the wood and its piling. 


Joseru Kyicur, a surveyor, counted and measured the 
stumps. He estimated that the actua! obstructions within the 
area measured as wood, without reference to the bad piling, 
umounted to 25 per cent. 


It was alleged to be proven that all this false piling, and 
consequent false measurement, was under the supervision of 
Wituram Parrick. 


Ezra Foster, Jr., Assistant Superintendent of the Eastern 
Division of N. Y. Central R. R. since the consouipaTion, tes- 
tifies as to this wood: “It was difficult to make steam with 
it; it was principally hemlock and spruce, much of it green ; 


14 


there was considerable many logs in it ; they would average 
from a foot to eighteen inches in diameter * * ; consider- 
ble of the wood appeared to be dozy, as if wind-fallen ; 7 
was dozy, wet, soggy wood; * * the engineers of locomotives 
complained of not being able to make time with it; * * L[com- 
plained to Mr. Visparn, and then for a while we would get a 
different kind of wood; they would send down short wood to 
us, and then they would send the same wood again; * * * 
I bought from time to time wood from the canal to mix in with 
it; LI cannot tell how much, quite a number of loads, perhaps 
ie all 500 or 600 cords from the canal and city; * * I got 

a different kind of wood sawed; I think it was ash and elm, 
there may have been some hemlock among it; then in a short 
time the Cuarx wood would come again, and we would mix the 
short wood with it.” 


Joun L.Scuooucrart,a Director, testified: “In the latter part 
of January or first of February, 1856, 1 and Mr. Ricumonp 
and Mr. Fietp-were called upon by Mr. Srymour, to go to 
Rome and examine a lot of wood delivered by Mr. Crark to 
the Roap, on the Rome and Watertown Railroad ; * Mr. 
Ricumonp, Mr. Fieip, Mr. Seymour and myself went to this 
lot to examine the wood; Mr. Dorscu was also with us, and 
a Mr. Jounson; there was a large quantity of wood piled on 
the ground; it was on both sides of the railroad; it was 
piled so thata person could not pass in betweenthe piles ; | know 
very little about wood, or its piling, or its quality; there was a 
great deal of decayed wood, and small woodand limbs, and from 
the knowledge I have of piling, I think it was badly piled ; 
in some places tt was piled on large logs; large logs constitu- 
ted a part of the piles ; they had been cut and not split at all ; 
the wood was not assorted ; the limbs and rotten wood were not 
taken out; some of this was wood that bore on the ends the 
measurer’s marks ; Mr. Dorscu was with us in the examina- 
tion of the wood; we had conversation about the mode of mea- 
suring the wood, and the condition of the wood; we went on to 
the ground and examined the wood, and were there about two 
hours; on our return to the hotel we consulted with Messrs. 
Ricumonp, Frey and Srymour; we agreed to telegraph to Mr. 
Pruyn not to pay any more money fo Mr. Cirark, and I did 
so; * * * In the fall of 1856, after a fire had destroyed 
a portion of the wood on the lot, | again visited the lot with 
Mr. Fre.p, a Director of the Road, Cot. Hamitron, Mr. Sry- 
mour and Joun T. Crark; the wood was piled over stumps ; 


wy 


15 


the wood was of aninferior quality, not merchantable ; Cou. Ham- 
iLTON or Joun T. Crark measured the length of the wood ; tt 
was not four feet in length ; I saw it measur ed ; there were logs 
in among the wood, over a large piece of land, not split; 
when I was on the lot in the winter of 1853, the bottom of 
the same piles was of old wood; a layer or two of old wood 
and the top of new wood; I cannot say how much, but enough 
to attract my attention; * * * the wood on the Railroad 
was piled so close that we could not see in between the piles 
we could not examine the inner piles ; all we could see was the 
end of the piles; I cannot tell the proportion of rotten wood ; 
I saw stick after stick; the ends were decayed; I did not want 
Mr. Ricumonn’s opinion after [ saw the wood ; the botlom of the 
piles had the appearance of having laid there a long while, and 
having new wood piled upon it time and time again; the other 
wood. appeared fresh; the second time I was present they 
were assorting the wood, the piles were opened.” 


The case is aided not a little by the circumstance, that the 
same witnesses saw the wood on the lot while the piles were 
so “jammed together” that nothing was to be seen but the 
fair and fraudulent outside; and also, after the piles had 
been opened and the inside “ exposed.” 


Davw Urttery, a Director of the Rome and Watertown 
Railroad, testified: “I went on the lot with Mr. Armsrrone, 
Cor. Hamitron, Mr. Scuoorcrarr and Joun T. Criarx; this 
was a year ago last fall; I saw one large pile; they were 
moving or assorting it on the Railroad; this was just after 
the fire ; L measured some of the piles, the height and length of 
wood; there were a good many piles close together, making 
one pile; the wood was short about six inches in length and 
height; there was considerable many logs on the bottom of 
the piles, and some small logs mixed in; J would consider 
the wood worth two-thirds of what we call good railroad 
wood.” 


Eizur Crark, of Salina, testified: “1 have been in the 
timber business for the last twenty-five or thirty years; * * 
at the request of Mr. Srymour, I have gone to the Crark lot 
and examined it for the purpose of seeing the wood that was 
cut there, its quality and situation; one time, the first time 
I went there, there was a large quantity of wood on the 


16 


ground; this was in the month of June, 1856; * * * 
where they opened into the wood, there was one place in 
particular that I noticed; that was piled over a rough piece 
of ground filled full of logs, which had never been split, two 
feet in diameter, thrown into the pile promiscuously and the 
wood piled over it; the wood was on the westerly side of the 
creek ; J measured the length of the wood and the height; I 
saw the marks on the ends of the piles where it was marked 
with black paint; this one was marked 7 feet high ; it was 
one of the piles next to the Railroad ; I measured the height 
of itin a good many places; it did not measure from the 
ground to the top of the piles over 6 feet and 6 inches, so far 
as you could discover, the other piles or tiers were smooth on 
the top so that you could walk over it, all piled close together ; 
so far as the ends of the other piles were concerned, I cowld 
not see any particular difference between their height and the 
height of the pile I measured ; it isa common custom with 
us to allow one inch for every foot in height of wood to get 
full height; in thes case the marks were 7 feet and the pile 
only 64 feet ; [ measured the length of 100 sticks in that pile ; 
L made the length 3 feet 8 inches ; I measured from the scarf 
to the point to ascertain the length; 3 feet and 8 inches was 
the average; some of the sticks were not more than 3 feet, 
others were 4 feet; the pile that was marked 7 feet high I 
made no deduction of one inch per foot to get the 64; 64 was 
ats actual height; the wood was not piled as I have been 
accustomed to see it; it was piled over stumps; you could 
see some of the stumps on the outer piles; on both sides of 
this great body of wood you could only sce two outside tiers of 
wood: so far as regards the quantity of wood, I did form an 
estuemate in my mind of what should be deducted from it to 
make its quantity; I thought I could take any 100 cords of 
wand put it intoTs cords; I thought all the wood measured 
one-quarter too much ; 1 mean the big pile and the piles near 
the branch, I would except what had been re-piled: there 
Was some wood there that had been re-piled; the wood that 
had not been re-piled, I thought was measured one-quarter too 
much; so far as the wood 7s concerned that lays near the 
branch, some portions of 7t appear to have lain there so close 
together that it was mildewed or water-soaked; the other big 
pile when I measured I did not see but it was dry enough; 
I could not see into that ; that portion of the wood that was 
mildewed was not worth more than two-thirds as much as if 
it were dry; I would deduct 33} per cent. for mildewed ; I 


%) 


17 


examined the lot with a view to see how many cords it would 
yield to the acre; from the best judgment I could form, judg- 
eng From the stumps and the timber standing, L think it could 
nol vary much from fifty cords to the acre.” 


Joun T. Ciark, late Stare Encinerr, testified as to the bad 
piling and admixture of stumps, roots, logs, and rotten and 
dozy, with such wood as was sound ; that it would not aver- 
age more than 34 feet in length: that the wood was mea- 
sured in the presence of Cot. Hamitron, and said : 


“From my investigation and examination of the wood, 7 
came to the conclusion that forty per cent. deduction should 
be made from the wood; If the stumps were excluded from 
observation, and there were no stumps adjacent, no man 
could have told how much was there ; the stumps being ad- 
jacent, the person might foresee they were under.” 


Dean Ricumonp, a Director, testified that in the month of 
January or February, 1856, he went to Rome with Joun L. 
Scuoo.crart, Josera Fretp and Mr. Seymour, and Mr. Dorscu, 
(meaning thereby Mr. Perer Dorscn,) to examine a quantity 
of wood on what is called the Ciark lot. 


Q. Was any question asked Mr. Dorsca, when on the lot 
and looking at the wood, how he could tell anything about 
the quantity or quality of wood piled in the way that was? 
If so, what was his reply; Give the language if you can, 
if you cannot, give the substance. 

A. We walked alongside the wood; I believe I was along- 
side of Mr. Dorscu, most of the way; we came up to where 
there was some seven or eight tiers, and I asked Mr. Dorsca, 
said I, “Mr. Dorsca will you please tell us how any man 
can measure that wood and give the proper amount?” The 
wood was piled so close together that no man could get between 
it; he said it could not be done; that he was sent here to mea- 
sure the wood; that anybody knows it cannot be done; that he 
did the best he could with it, but that it could not be done pro- 
perly ; Lasked him if this wood was measured for us in this 
manne”; he said if was; once or twice ufterwards the same 
question was asked; I looked at the stumps and sa'd I did not 
see how wood could possibly be measured in such ground, among 
such stumps, in such tiers ; he remarked it can’t be done! 


3 


18 


The award was charged to be partial for the reason that 
it allowed $3 per cord for all the wood, while the submission 
gave the arbitrators power to make an equitable deduction. 


The contract being void by the Statute of Frauds, and sub- 
ject at all times, so far as it remained executory, to revoca- 
tion or modification by either party, it was held to have 
been modified by the notice Visparp gave to Ciark, in Octo- 
ber, 1855. Neither the wood delivered before nor after the 
notice was of the sort required by the contract—it was not 
“suitable for burning in locomotive engines ”——-nor was it 
“ properly cut and split,” nor “sound,” nor “free from small 
limbs.” Of the wood examined by Joun T. CLarxk and others, 
and by the Arsirraror Hamiuton, it took 50 men 39 days 
to split, assort and re-pile 3,353 =5% cords, at a cost of more 
than 50 cents a cord; and 500 to 700 cords had to be 
thrown out as unsuitable. CLarKx himself had acted under 
the notice. 

Henry Stevens testified: “That he was Paymaster of 
New York Central Railroad in January and February, 1856 ; 
* * * this isthe $9,000 voucher; this certificate of mea- 
surement was presented to me ; the outside paper or voucher ; 
I made the certificate of measurement; in the certificate of 
measurement there are 3,905 75, cords, and the price stated 
on the certificate is 20 shillings ; i¢ was handed to me by Mr. 
Dorscu, in order to have the voucher made out for the purpose 
of payment ; it was then $2 50, as it is now; Mr. Crark 
came in and asked me when we were going to pay; I said, 
probably not this month; he then asked me how many cords 
there were; I hunted and found the voucher and told him; 
he then says to me let me take that voucher if you are not 
going to pay this month; I told him I had no objection, and 
handed him the voucher.” 

That notice had been given by Visparp to Crark that 
after October, 1855, no more than $2 50 per cord would be 
paid to him for wood, was not denied ; and it seemed clear that 
in February, 1856, poor CLarx had made up his mind to sub- 
mit to the exaction, because he rendered a bill for wood at 
that price, and manifestly expected to be paid that price. It 


19 


was hard for him to take such a price after the habit had 
become fixed of receiving a higher one, and so the arbitra- 
tors must have thought, when, by their award, they relieve 
and protect him not only against the rapacity of the Com- 
PANY, but also against his own weakness. 

Upon grounds which may be gathered from the foregoing 
statement, the Counsgx for the Company contended orally be- 
fore the arbitrators and also placed in their hands a written 
brief, claiming that the contract being made for trees grow- 
ing upon land was liable to modification, and was modified 
by Mr. Vissarp from three dollars to two dollars and fifty 
cents per cord. That Mr. Crark, under his agreement, had 
no right to deliver more than 12,000 cords per year; that 
the contract was for suitable wood, properly cut and split; 
but that the wood was not suitable for railroad purposes, 
according to contract; that the wood was so coarse that it 
took fifty men from February 11 to March 28, to split and 
re-pile 3,353 cords of it, and 700 cords of culls were thrown 
out, and that one-half of all the remaining wood required 
re-splitting, and that from one-sixth to one-fourth should have 
been culled out; that the wood was so loosely and badly 
piled in the interior of the piles, and also piled over hidden 
logs, brush, stumps, roots and knolls, and in so many and close 
rows of piles, while the exterior of the piles appeared well, 
that the whole was a fraud upon the Company, and upon its 
agent, unless he was a party; and in either event the certifi- 
cates of measurement were no criterion of the quantity of 
wood. That the wood was not four feet in length nor six 
feet high. That the fact that the measurement of wood 
over stumps, logs, roots and knolls, could not be relied upon, 
was not only apparent from the circumstances, but also 
from the fact that the land could not yield the quantity 
alleged to have been measured. ‘That the number of car 
loads of wood drawn from this lot was most manifestly a 
better measurement of the wood delivered by CrarK than 
any measurement that could have been made on the ground, 


20 


and relieved the case from all guess-work. That they have 
the evidence of the men who drew the wood, the number of 
car loads and the quantity per car. That fortunately most 
of it was drawn by Rassack, who commenced drawing 
in May, 1855, and continued till January, 1856, and kept a 
memorandum of loads and days. That from the time this 
drawing commenced until it was stopped in February, 1856, 
they had the quantity drawn by each and every man, and 
that all that was afterward drawn was by Joun Hoae, who 
kept account of his cars, and the wood drawn in them was 
re-measured at Albany, except 406 cords measured at Oris- 
kany. That there had been drawn before Hoac commenced 
8,764 cords, and Hoace drew 5,720 cords; and that it was 
impossible that the quantity of wood claimed by Cuark 
could have been drawn away. That every experienced and 
disinterested man who had examined the piles estimated 
that there should be a deduction of one-fourth from the ap- 
parent quantity to get at the real quantity, taking into 
account the quality. That Joan T. CLarx estimated that the 
deduction should be Forry per cent ; E. B. Armstrrone, One- 
Fourtu ; Joun Hoac, One-Fourtu ; Davin Uriey, One-Tuirp ; 
Exizur Ciark, Onse-Fourta; Witiram Coomses, One-Tuirp. 


Upon arbitrators whose indifference to the parties litigant 
was not obnoxious to suspicion because of their relations to 
‘ ther, facts and inferences so specious might have had 
effect. But it was undeniable that, to a man, they were the 
appointees of one of the parties, that in honor or emolument, 
or both, all of them were paid by the party. One of them 
indeed, to whom further honor would be superfluous, and 
therefore received from his connection with the Company 
money only, was liable to the grave disability of having in- 
vestigated and pre-judged the case. Scnootcrart, swearing to 
the bad quality and short measure of the wood, says: “Cox. 
Hamitton or Joun T. Crark measured the wood; it was not 
four feet in length; I saw tt measured ;” and Joun T. Cuark 
says: Cou. Haminron was present; we were on the lot an hour 


21 


or an hour and a half, we may have been there two hours ;” All 
who are aware of the keenness of Cot, Hamivron’s faculties 
need not to be told that, “in an hour or an hour and a half,” 
he would see a great deal. It is due to Cou, Hamitton, to 
state that on that occasion he was not under oath—when he 
made the award he was. It was notorious too, that no man 
holding any post of honor or profit in that Company could do 
anything disagreeable to the appointing power, except at 
the forfeiture of his office. The Cabinet of Gren. Jackson, on 
the day it was most especially “a unit,” is but an emblem 
of discord contrasted with the unrry OF THE DIRECTION OF THIS 
Company—it casts but a solitary shadow in the sun. This 
fact makes necessary a conclusion equally irresistible and 
creditable. The arbitrators must have been aware what 
would be agreeable to the appointing power, which relieves 
that high quarter from the slightest suspicion of having in 
any way countenanced the modification of the contract by 
Vissarp; the impeachment of the correctness of the certifi- 
cates of Mr Perer Dorsca ; the defamation of CLiarxk’s wood ; 
the efforts of Director Seymour, or any of the persecutions 
which fairly entitle Cuark to a place in the next edition of 
the Book of Martyrs. Indeed, the Courr was urged to con- 
firm the award upon the very ground that its acceptability 
in that quarter had been demonstrated by the re-appointment 
or continuance of these arbitrators in the same offices in the 
Company, and everybody knows the appointing power itself 
had received from proxies the same meed of approval. The 
case might have been made stronger by apprising the Court 
that vengeance had overtaken the Director, who, misled by 
a sense of duty, had prompted investigation; that an impres- 
sion had been rife among the employees, that whosoever ma- 
ligned the “CriarK woop” did so at the peril of his daily 
bread; and whether that impression was well founded or 
not, it was potent enough to annihilate all memory of the 
wood in some, and to drive others to such supplications to be 
spared subpenas as were painful to hear and impossible 


22 


to disregard. It is to be lamented that the SrockHoLpErs 
were not recognized as parties by either of the Tribunals 
which have tried this case, and as the virtues of Consoripa- 
TION are quite well known to them, the expediency of consol- 
idating the interests of the Srocxuo.pers and of their OrFicerRs, 
which now appear to be several, is suggested. ; 

The Company however took nothing by its motion. The 
arbitrators set their faces like flint against all attempts to 
modify or to enforce the contract—to impeach the truth of 
the certificates of measurement, to disparage the fertility of 
Clark’s lot, or the quality of its wood, by testimony. 

Unlike the Company, which seems to have trusted to the 
number and respectability of its witnesses to establish its 
case, CLark surprises us by the completeness of his trust in 
Providence, which is never without a Superintendent. No 
subpeenas of his summoned Railroad Directors, Bank Presi- 
dents, or ex-State Officers, but to the Company’s array of 
witnesses of position, he opposed a remarkable disparity in 
point of number, and of much greater disparity in point of 
character. So unequal a contest has not been observed 
since another David smote another Goliah, and in this In- 
stance, as in that, “the battle was not to the strong,” nor the 
spoil either. Let all Clarks take courage and all Railroad 
Companies be warned by this overruling of a superintending 
power. 

The entire defence and claims of Ciark rested mainly up- 
on the testimony of two witnesses—Witi1Am Parrick and 
Mr. Perer Dorscu—a fearful odds! 

Patrick swore as became “the hour and the man.” He 
said: “I was to get my pay by Railroad measurement; | 
was to get so much a cord for what I hauled out and banked 
by ratlroad measurement; * * Iwas on the lot daily ez- 
cept Sunday ; I saw the wood daily from the time it was cut 
until it was measured; J assisted Mr. Dorscu in measuring 
the wood every time with the exception of once, when I was 
sick, and then I sent a man to help him.” 


a, 


23 


Parrick’s pay being thus contingent upon “ railroad mea- 
surement,’ which, done into English, means the measurement 
of Mr. Perer Dorscu, it was held that Parricx had a direct 
pecuniary interest in maintaining the accuracy of the certi- 
ficates of that worthy man; for if the Company could be 
made to pay for roots, stumps, logs and knolls, as for wood 
sold and delivered by Ciark at $3 per cord, he Parrick, 
would be entitled to “so much” for each and every such 
cord. Having assisted at the measuring, he affirmed its en- 
tire correctness, and produced memoranda of the details 
handed or furnished to him by Dorscu—his connection with 
the piling is sworn to by Simser and Hoag, and is admitted 
by himself. The erection of sticks to keep the wood from 
the stumps in the cases of single piles, where the stumps 
could not be concealed, and in those cases only, is conclusive. 
Patrick “made an effort” to magnify the quantity of wood 
banked, which would have satisfied Miss Tox herself, but 
his data were held to be incredibley because they showed 
a product of 46,000 cords of wood, which was altogether 
farther beyond the testimony than the arbitrators went. 
Besides, McEtwainse testified that Parricx told him that the 
8,762 cords, measured in April, 1856, by Mcliwate, was 
more wood than Dorscu had previously measured on the lot. 
McExwaine had stated the same fact in his report to Mr. 
~Pruvn. McExtwaine swore also, that he asked Patrick the 
amount of Dorscn’s measurements, and that he replied he 
could not give it. McE.Lwaine made a memorandum of the 
conversation at the time. It will be recollected that on this 
occasion McEtwatne was engaged in trying to discover the 
actual quantity of wood delivered and measured upon this lot, 
and Parricx knew the object of his enquiries—therefore, if 
Parrick had possessed the memorandum book produced upon 
the hearing, he would have exhibited it. The entries in the 
book were suspiciously fresh also. Parrick swore that 
Dorscn marked the piles short to allow for stumps, but on 
cross-examination he could only remember four instances— 


24° 


twice in his own case, and twice inthe case of others, and in 
regard to a small body of wood. The men who sawed the 
wood on the lot swore they measured the piles, and found 
that the marks on the wood represented its entire length. 
Parrick needs, and is entitled to the benefit of a moral or 
religious excellence developed by his testimony, incidentally, 
he was never on the lot on Sunday! 

The witness who seems to have been most esteemed by 
the arbitrators, and whose evidence would have controlled 
the award, if such authority had been allowed any con- 
control whatever, is Mr. Perer Dorscn, of Schenectady. 
Esprit du corps may have had something to do with this—he 
had been “ Perer Dorscu or Ours,” ever since the Consouipa- 
Tion—quite le fils du Regiment. This veteran testified : 


“] reside at Scuenectapy ; I was in the employ of the Cen- 
TRAL RartRoaD Company, and I was from the time of the Consot- 
IDATION; this was five years ago; my first business was I had 
charge of a portion of. track as trackmaster; I continued 
trackmaster upwards of one year, it may have been more, 
until January, 1855; after that I was employed in measuring 
wood from Albany and Troy to Syracuse; I continued as 
such measurer until the first of February, 1856; during that 
time I was engaged in measuring wood for the Company ; 
my position at that time ceased by my giving the Roav notice 
that I should quit; | gave that notice to Mr. Vissarp; I re- 
sided at Scuenecrapy during all this time, and Mr. Vissarp 
did also; I often saw Mr. Vissarp in my official duties while 
measuring wood; I am acquainted with the Cuarx lot; I 
have been on part of it; | measured wood on it.” The wit- 
ness is shown certificates of measurements, and says: “ They 
are all my certificates ; the signatures are mine; * * Mr, 
Wm. Parrick generally assisted me; | measured at the seve- 
ral times the several amounts stated in those certificates ; at 
those times the amount of wood was actually there ; number 
three says so many cords of hard wood, it should be mixed.” 
The witness is shown a paper, and says that it is his hand- 
writing, it is dated January 17, 1856; the amount of wood 
stated in it, 3,905 ,3%. cords. “ The price of $2 50 was not so 
when I made out that certificate; when I made it, it was $3, 
it is now $2 50; the amount of wood stated in that certifi- 


25 


cate was there when I measured it; * * * J measured 
short in length all the wood that was sawed upon the lot; I 
mean by that, ifa person took a tape line and measured the 
length of those piles he would find them longer than the marks 
on the ends of the piles indicated, so much shorter that it would 
be observed; I always measured a block pile two feet short, a 
foot at each end, and over and beyond that f made a difference 
in this case; I have looked for some of the original memoranda 
of my measurements, and they are probably destroyed ; I cannot 
find them ; they were on loose pieces of paper; Mr. Crark was 
generally with me when I measured the wood ; sometimes I had 
aman to assist me, and sometimes a man by the naine of 
Suutts, of Oneida, sometimes only Mr. Cuarx and Mr. Parricx ; 
* * * JI went upon this CLarx lot with Joun L. Scaoot- 
crart, of Albany, Josera Fieup of Roches'er, and Dean Rica- 
monpv Of Buffalo, and Joan F. Seymoor, all then Directors of 
the New York Central, to look at the wood on this lot; I 
was then asked in the presence of these gentlemen how I| 
could tell anything about the quantity and quality of that 
wood piled as it was, or how I could measure it; L did not 
say in reply that [could not tell, or that it was mere guess work, 
or anything of that sort; I did not say substantially that to 
Mr. Scuootcrart, nor to Mr. Ricumonp, nor to Mr. Fiecp ; 
* * * TIT did not say that I could not measure it; I said 
that it was difficult, that I had to go on the tops of the piles ; 
that there might be stumps I could not see.” 


A more simple and intelligible story could not well be 
told. Unequivocal in statement, firm in denial, and cour- 
teous in both, one might expect it would make an end of 
strife. The moral effect of so plain a tale upon the arbitra- 
tors is visible enough in their award; and the adverse party 
could raise but a single objection to it, to wit: that it was 
false—which, it is as apparent, found small favor with the 
arbitrators. There was, indeed, this remarkable feature, 
which might have worked mischief between parties who 
knew less of each other than did these arbitrators and this 
witness, that nearly every material statement made by 
Dorscu was contradicted by witnesses who stood unim- 
peached, and were allowed to depart so. An example or 
two will illustrate the indignity to which Dorscu was sub- 


4 


26 


jected, and at the same time reconcile many to the some- 
what vindictive character of the award. 

Dorscu swore that he deducted for stumps by measuring 
the piles so short that any one re-measuring them with ‘a 
tape line” would observe it. To prevent error, to do which 
Dorscu seems to have a natural proclivity, he specified the 
“ sawed wood” as having been foreshortened in that manner, 
and of this wood there was some 4,000 cords. Yet, at the 
moment these truthful words left the lips of Dorscn, CLarK’s 
own counsel had already proved by Lawrence, who had the 
contract for sawing, that he measured some of the marked 
piles, and found the marks to be correct both as to length and 
height; and stranger still, he measured them with the very 
implement named by Dorscu,—* a tape line!” The foreman 
of Lawrence, who superintended nearly all the sawing, did 
the same thing, and swears the piles were not marked short. 

Dorscu swore positively that the price of the wood in the 
certificate of January 17, 1856, was $3 when he made it. 
Henry Srevens, Paymaster of the Company, swears of the 
same certificate: “lt was handed to me by Mr. Dorscnu, in or- 
der to have the voucher made out for the purpose of payment ; 
it was then $2 50 as it is now.” 

Contrast what Dorscu swears he did not say to Dean Rica- 
mMoNnD, With what Dean Ricumonp swears he did say over and 
over again. ‘The testimony of both is quoted above. In this 
connection it may not be amiss to enquire, what prompted 
theaction of the Directors which followed the very interview 
referred to by these discordant witnesses? If Mr. Dorsca 
had affirmed the correctness of his measurements, why did 
these gentlemen agree “to telegraph Mr. Prouyn to pay no 
more money to Mr. Crark,” if they believed Dorscu? and if 
the case had not been urgent, why telegraph at all; for it is 
inevidence that Scuootcrarr returned at once eastward, and if 
he did not go through to Albany that night, the train did, and 
might have conveyed a written notice to Pruyy. Evidently 
raiload speed was not equal to the emergency created by 
their examination of the wood and of Mr. Perer Dorscn. 


OS 


27 


Dorscn, it will be remembered, was as old as Consott- 
pation—in fact Consotipation and he were twins. He 
had “grown with its growth and strengthened with its 
strength.” His character had been formed by it—no mag- 
got ever partook more of the nature of the cheese which : n- 
gendered it, than he did of that which made him trackmaster. 
Limited as may have been his sphere in that capacity, it was 
not without advantage to him, in that it saved his morals 
from exposure to taint from the management of any other 
road; and while it subjected him to the constant observation 
of his teachers and superiors, it also revealed to them quali- 
ties which seldom appear upon the surface. What wonder, 
then, that when Providence had so ordered affairs that im- 
portant interests required that the road should have a wood 
agent of rare morals and mathematics, the Superintending 
Providence indicated Dorscu as the man for the place. It 
may aid feeble imaginations to conceive something of the 
difficulties of the position to know that a man like Cot. 
Hamiutoy, one of the arbitrators in this cause, was thought 
to be only a fit successor to Dorscu, and was made wood 
agent. The date of his appointment does not appear in the 
testimony, nor is it material, it being enough for all neces- 
sary purposes to say, that it probably does not vary much 
from the time of the convention whereat Cor. Hamitron’s 
nomination to Congress was waived in favor of Mr. Cornine ; 
the precise date of which may be learned on application to 
the nominee. Neither respect for Dorscu’s character, for 
his training, nor for the office he had held, was sufficient to 
restrain the opposite party from putting in proof before the 
arbitrators, one of whom wore Dorscn’s mantle, that Dorscu 
had measured wood “by faith and not by sight,” on pre- 
vious occasions, for CLuarK and others, and had granted his 
official certificate of the feat. This fact must have been al- 
ready known to the arbitrators as officers of the Company, 
and proof of it might have been spared without at all 
abridging their personal knowledge of it. McEKxuwarne’s 
Report could not have been new to them. 


28 


On the 5th September, 1855, Dorscu gave a certificate of 
measurement and inspection, which certified that Henry 
Patrick had delivered to the Company, at Oneida, 1,061 8), 
cords of mixed wood, at $3 50 per cord, upon which certifi- 
cate, after being endorsed by Vissarp, Patrick received from 
the Company in the presence of Ciarx, $3,715 15. At that 
time there had been in fact but 570 cords measured. On the 
23d November, 1855, Dorscu gave to the same Patrick, for 
the same wood, another certificate in which it does duty as 
1,214 cords of beech and maple, at $3 50 per cord, upon 
which, duly endorsed by Vissarp, Parrick obtained from the 
Company the additional sum of $4,294—Curark being, as be- 
fore, the subscribing witness to the payment. 

At this time no more wood had been measured, nor was 
any more tneasured until April of the next year, when there 
proved to be but 840 cords. This wood had been purchased 
by Crark and Parrickx from a Mr. Amstep, who swore there 
was about 1,400 cords of it, and that he sold it to them at 
$2 38 per cord, making the difference in quantity 865 cords, 
and in value of $4,491. The quantity was actually 30 cords 
less than Amstep stated, and AFTER INVESTIGATION, there was 
refunded on these fraudulent certificates, as follows: 


On 1,384 cords 9s. per cord overcharged, . . $1,557 28 
For 891 cords never delivered, . 5 ; 108, 118650 
Total, ; : F ‘ . $4,675 78 


On the 20th December, 1855, Dorscu certified, or perhaps 
prophesied, that H. 8S. Boeve had delivered to the Company, 
at Canastota, 2,531 86 cords of hard wood, at $3 50 per 
cord, upon which, endorsed by Visparp, the Company paid 
$8,824 48, January 8, 1856. 

McE.wainE says, in April, 1856: “The facts are that at 
the date of such certificate and voucher, no wood whatever 
had been delivered by or in behalf of H. S. Bogus, at Canas- 
tota, nor was any such man at that time known at that place. 


29 


About the Ist January, 1856,a man by that name came from 
Cohoes to Canastota, and commenced cutting and delivering 
wood from a lot of woodland purchased last fall by Georen 
H. Ciark from a man by the name of Huntiey. The result 
was, that in May, 1856, and arrer tnvesTicATIon, there was 
refunded : 


On 2,531 58 cords for overcharge, $1 per cord, $2,531 25 
ei: BLe « never delivered, . : jm OU 


od 


3.621 35 


The arbitrators very properly seem not to have encour- 
aged enquiry into matters not named in the submission, and 
Ciarx’s Counsel was evidently of the same way of thinking. 
So much as they could not keep out of the testimony does 
not appear to have gotten in anywhere else, and the amiable 
principle “let by-gones be by-gones,” is conspicuous in the 
award. Otherwise the catalogue of frauds in the case 
might possibly be longer, and the exact amount of the pro- 
fits of the “Crarxk Woop” be shown. Restitution having 
been made for the frauds at Canastota and Oneida, of what 
possible use could further information be to the Company? 
And why should the arbitrators have allowed Morss to tell 
what Cuark paid for the lot—suppose it to have been thie 
$25 per acre hinted at in the papers, was it not enough for 
the Company to know that by no process could it be shown 
that the lot yielded in his hands more than $275 per acre ? 

The submission bears date September 4, 1857, and is 
signed by Georce H. Crark and Erastus Corning, Prest. &e. 
The award bears date April 19, 1858, and is signed by all 
the arbitrators—an evidence of such harmony of opinion as 
makes each arbitrator appear so like his fellow, that it is not 
easy to say which is the greater of the three. 


“ We award,” say they, “that the measurements and certi- 
ficates of measurement of the wood sold and delivered by said 
Criark to said Company, on or near the line of the Rome and 


30 


Watertown Railroad, are correct, except as hereinafter stat- 
ed; that said Clark has delivered the quantity of wood at or 
Anbar said Rome and Watertown Railroad near Rome, and of 
the quality for which he has received pay, except as herein- 
after stated; and that the price which he has been paid 
therefor was right, except as hereinafter stated. 

“We award, that from the whole amount of wood which 
said Cuark has so delivered and for which he has been paid 
and for which said Company hold said Crarx’s receipts, 
amounting to twenty-three thousand three hundred and 
ninety-seven cords, there should have been deducted for de- 
ficiency therein, occasioned by bad piling, stumps, cradle 
knolls, hollow logs and defective wood, and all other deficien- 
cies, ten per cent. of that amount, being two thousand three 
hundred and thirtv-nine cords and seven-tenths of a cord, 
which last mentioned amount at three dollars per cord, will 
amount to seven thousand and nineteen dollars and ten 
cents; and this last named sum with interest thereon from 
the 19th day of April, 1855, (that being the day we fix on to 
average said deficiency,) will amount to eight thousand four 
hundred and ninety- three dollars and eleven cents, and this 
amount last named is to be deducted from the amount due to 
said Clark for other wood delivered by him for which he has 
not yet been paid, as hereinafter stated. 

“ We find that the Company has in no instance paid said 
Crark a higher price than it was legally and justly bound to 


pay for said wood sold and delivered, except as above 
stated.” 


It would be gratifying to know how these arbitrators ar- 
rived at Ten per Cenr., in view of the evidence before them, 
as a proper deduction on this portion of the wood. If 
Dorscn’s “measurements and certificates of measurement” 
were true at all, they were so in whole, not in part. 
The deficiency to be atoned for by this deduction, Dorscu 
Swears positively did not exist—he had supplied it. If 
Dorscu’s certificates were not believed, there was nothing 
left but such evidence as the Company furnished of the false 
character of Dorscu’s certificates both as to quality and 
quantity. No witness of theirs swore to any less deduction 
than twenty-five per cent. on the score of quality. Indeed the 


D 


31 


one who made the most careful calculation put it at rorry 
PER CENT. for both. If Dorscu were impeached, it is an out- 
rage upon the Company to award 10 per cent., which nobody 
swore to, instead of 25.334 or 40 per cent. deduction, which 
several witnesses did swear to; if Dorscu were not im- 
peached the outrage is upon Crarx, because Dorscu swore 
plump 100 and not 90 per cent. If Dorscu were not im- 
peached, Jonn L. Scuooutcrarr, Dean Ricumonp, Joun T. 
Cuark, Davin Uruey and others were. Besides, no deduction 
whatever can be justified, except upon the ground that 
Dosrcn’s certificates were not correct, and the award de- 
clares the 10 per cent. deduction “to be for bad _ piling, 
stumps, cradle knolls, hollows, logs and defective wood.” 
There were none of these substitutes for wood in the testi- 
mony of Dorscu or Patrick, but that of the Company’s wit- 
nesses was ful] of them. The Arsirrarors seem to have 
taken their quantity and price, without abatement, from 
Dorscu, while they get the bad piling, roots, stumps, &c., 
in quantity exactly opposed to the testimony, from the wit- 
nesses on the other side, without perceiving that by recog- 
nizing the roots, stumps, bad piling, &c., at all, they made 
Dorscu’s quantity and quality impossible. 

There is two-edged injustice in requiring Cuiark to deduct 
and the Company to pay upon an obviously wrong quantity. 
Perhaps they did not weigh the evidence at all—they 
may have measured it with Mr. Perer Dorscu’s own rod, 
and after Mr. Dorscu’s method. An “area measurement” 
of Mr. Dorscn’s testimony might show the greater number 
of cords of truth, seeing it was entirely without logs, stumps, 
roots, knolls and what not, while the testimony of the oppo- 
site party abounds in them. At all events Truru 10 per 
CENT. OFF, is a new quotation in the market, and it might 
have saved dispute in the future, if the award had gone a 
little further and decreed at what rate of discount Trurs be- 
comes F'aLseHoop. 


32 


“ We find and award,” say the arbitrators, “that over and 
above the aforesaid amount of wood which said Ciark had 
delivered and been paid for, (viz., the aforesaid amount of 
23,397 cords,) the said Cuark has also delivered to said Com- 
PANY, at their request, eight thousand seven hundred and 
sixty-two cords and one hundred and ten feet of wood, in- 
cluding the amount mentioned in the certificate held by 
him; that said 8,752 119 cords of wood were delivered by 
him at the place aforesaid, on or before April 19, 1856, and 
that for the same the said Company were and are bound to 
pay said Ciark at the price of three dollars per cord ; and 
that said Cuiark is entitled to recover for that last mentioned 
amount of wood at that price against said Company, making 
the sum of twenty-six thousand two hundred and eighty- 
eight dollars and fifty-seven cents, with interest thereon from 
April 19, 1856, which will amount to twenty-nine thousand 
nine hundred and sixty-eight dollars and ninety-six cents at 
the date of this award.” 


It is then decreed, that from this sum shall be deducted the 
aforesaid $8,493 11 for deficiencies, and proceeds : 


“ And we do therefore award, that the New York Centra 
RattRoap Company pay to said Crark the sum which he is 
entitled as aforesaid to recover, being the sum of twenty-one 
thousand four hundred and seventy-five dollars and eighty-five 
cents, with interest fee eon from the day of the date of this 
Cian FH ait * 

“ And we therefore Ae that, after the making of such 
payment by said Company to said Clark, the said ‘Clark de- 
liver up to said Company the aforesaid certificate or certifi- 
cates now held by him. 

“In witness whereof we have hereto set our hands and 
seals, this nineteenth day of April, 1858, 


(Signed) “D, Hamitron. [1 s.] 
“ L. SPRAKER. [ L. s. | 
“ B. P. LEaRneEp. [1 8. | 


«Signed, sealed and published 
in presence of 


M. H. Sr. Jonn.” 


< 


a.) 


33 


The arbitrators are indebted for these 8,762 11° cords 
whereon to award Clark $3 per cord, to an “area measure- 
ment” by McEtwains, which measurement McEuwatne 
swears was merely an outside measurement, and allowed no- 
thing for bad piling, roots, stumps, logs, &c. Mr. Pruyn 
having directed that the wood should be removed and mea- 
sured at Albany, McEnwarns expected to arrive at the true 
quantity after its removal there. 

There had been, by the labor of fifty men for thirty-nine 
days, split and re-piled 3,858 58, cords of this wood, of which 
McEuwaine testified: “that part of this wood that was re- 
piled was in a shape to get a correct measurement, as far 
as it could be on such ground ; but in regard to the whole, he 
swears: “If it was not to be re-measured, I would not have 
been satisfied with the measurement; 2,018 cords on the 
ground, after the fire, measured when moved, 1,589 cords.” 
A quantity, estimated by him on the lot as 1,221 cords, when 
removed and re-piled, measured only 922 cords. At all 
events, upon the same authority which gave the arbitrators 
the arbitrary quantity of 8,762 11° cords, they knew also 
that that was not the correct quantity. 

McEtwaine seems to have been regarded as a credible 
witness to swear money into Ciarx’s pocket, but for no other 
purpose; not a syllable calculated to save the Company from 
buying roots, stumps, knolls and hollows at $3 per cord, ap- 
pears to have reached even the ears of the arbitrators. The 
award presents the very remarkable inversion, that from the 
fabulous quantity of 23,397 cords, upon which the honest 
man who measured it swears he made deduction for roots, 
stumps, logs, &c., it deducts ten per cent. for that very con- 
sideration; while from the 8,762 cords which the unim- 
peached and unimpeachable man who measured it, swears 
was the apparent and not the real quantity, no deduction 
whatever is made; and this comprises the very wood in- 
spected and condemned upon the ground, by one of the arbi- 
trators, himself then performing for the Company the functions 

5 


34 


formerly exercised by Dorscu—those of wood agent. Dorscu 
had the grace to swear he made deductions, he could not go 
the length of ignoring them, although his action in that be- 
half was voluntary—his successor is able, however, to dis- 
card them against the evidence of his own eyes, which he 
has the right to distrust, and against the evidence of honest 
men, whose evidence Wrote nat was to be believed. 

More than this, for 3,905 582. cords of this wood, Ciarx had 
demanded payment of the Company at $2 50 per cord, and 
held, produced and filed with the arbitrators his voucher for 
it at that price—-it was marked as an exhibit—yet, for those 
very cords, it is awarded that the Company shall pay $3 
each. ‘The peremptoriness of expression toward poor Crark 
in relation to this voucher is the only trace of ill feeling 
toward that abused person to be found in the award or in 
travail that gave birth to it, on the part of the arbitrators, 
and it is to be regretted that Ciark was not required in 
more courteous words to surrender TwENTYy SHILLINGS WORTH 
oF VoucuEr, upon being paid Tyree Dottars THEREFOR BY 
THE Company ! 

This award is now affirmed by the General Term, and 
judgment has been entered against the Company for $21,475.85 
with interest from April 19, 1858. If any Stockholder will 
compute the interest and add that and the costs of the liti- 
gation to this sum, he will have before him in dollars and 
cents what it costs not to modify or to enforce a verbal con- 
tract made between two men of Schenectady. The cost of 
enforcing or modifying one will be known when such a 
thing shall have been done. 

A careful computation, it is believed, will justify the state- 
ment that the treasury of the Company would be better off 
in the end if it had paid directly, instead of indirectly, a 
Hundred Thousand Dollars to the parties who share what 
has already been paid and will share what is yet to be paid. 

A Company which provokes such expenditures as these 
will have other uses for its revenue than to pay dividends ; 
and the simple souls who wonder why the most lucrative 


a 


35 


route on the continent cannot keep its stock within twenty 
per cent. of par, or its dividends from shrinking, may as well 
get ready to speculate why there has come to be no dividend 
at all? 

When that day comes the investigation will be made, 
which too late will show how all was lost, as well as that 
all might have been saved; and it will not be strange if 
other Sir Giles Mompessons shall be found to have gone 
“beyond the seas.” 

It is quite probable the Court allowed full weight to the 
consideration warmly pressed upon it, that the action of the 
power which appointed these arbitrators had been approved 
by the Stockholders who had re-elected it; and the re-ap- 
pointment or continuance of the arbitrators in their several 
offices, was a marked approval of this award by the appoint- 
ing power of the Company. If the Courr desired to read a 
lesson to the StockHoLtvers who, through timidity or negli- 
gence, perpetuate mal-administration, notorious as it is in- 
famous, the absurdly stringent rules of law in regard to 
arbitration made it easy to do so. By ignoring as that in- 
terest the counterfeit which was represented, the Court could 
readily excuse itself for not standing in the way of a Com- 
PANY so Willing to be robbed as to take upon itself the 
performance of the meanest and severest of the labors by 
which it was to be plundered. The Counsex of the Company 
represented nobody but himself—the Company stood behind 
somebody else, cursing his earnestness. 

In this point of view the affirmance of this award may be 
worth to Stockholders more than its cost, and that the moral 
benefit of it may be diffused, it is now made public what has 
been affirmed. 

The time is approaching when the Stockholders of this 
Company will be expected to respond to the annual requisi- 
tion for their proxies in the usual manner—and it remains to 
be seen whether the annual farce of an election is again to 
be acted without any change of persons or even of costume. 


36 


The Stockholders may continue cowardly and time-serving 
as ever, but the misuse of their property and franchise by 
the management they have sustained from the beginning, 
has worked mischiefs of so serious a character to the moral 
and material interests of this State, that it will become them 
to reflect how much longer they can expect the ProrLe to 
abstain from legislation indispensable to the public protec- 
tion? Unless some warrant is given that the SrockuoLpErs 
have virtue enough to rebuke dishonesty, negatively at least, 
by abstaining from re-electing the dishonest, the CanaL IN- 
TEREsT Of this State will hold itself authorized to resort to 
countervailing enactments even at the hazard of being 
thought vindictive. Further justificaiion of this course 
may be expected; but a single transaction has now been 
exposed—others will be. 


As» 


_ a 


THE 


FINANCIAL CONDITION OF THE CENTRAL. 


From the New York Herald. 


We give below a carefully prepared statement of the bu- 
siness of the New York Central Railroad Company for the 
last six years, tramed from the Company’s own Reports 
from 1855 downwards. The receipts and earnings of the 
Company have been decreasing, yet the Company stuck 
steadily to a semi-annual dividend of four per cent. until the 
last. The statement shows that such dividends were made 
out of capital, or by the issue of bonds—that is, creating new 
stock and new bonds, in order to maintain the appearance of 
a remunerating business, and consequently increasing the 
price of its stock in Wall Street. When we see the direc- 
tors of railroads among the most rabid speculators on the 
bourse, we always infer that there is a great probability 
that the stock in which they speculate, of railway companies 
in which they are directors, are jobbed according to the 
management of the road for Wall Street purposes. At the 
present moment there are many railroad companies that 
cannot pay their hired laborers regularly, or in full; and 
back debts for mere wages are accumulating. 

Railway property is among the most important of the 
country, but there are too many competing roads, and the 
transportation of some of the Western railroads must fall off 


38 


from this cause alone. In mild winters, like the last, the 
water navigation will enter into successful competition with 
the railroads. 

The West is suffering from the continued manufacture of 


an irresponsible shin-plaster currency, instead of using the 
precious metals alone. 


NEW YORK CENTRAL RAILROAD. 


Receipts. 
Year. PASSENGERS. FREIGHT. OTHER SOURCEs. 
1853 . $2,829,668 74 $1,835,572 25 $122,279 18 
1854 .; 3,151,513 89 2,479,820 66 286,999 95 
185) .. 3,242,229 19 3,189,602 90 131,749 05 
US 3s) ceeds 3,207,378 32 4,328,041 36 171,928 50 
1857.6 3,147,636 86 4,559,275 88 320,338 67 
1858 . 2,532,646 55 3,700,270 44 295,495 71 


Total, . $18,111,015 55 $20,092,583 49 $1,328,791 06 
Total Receipts for Six Years. 


From Passengers, . $18,111,013 55 
From Freight, . 20,092,583 49 
From other sources, : ‘ i 1,328,583 49 

Grand Total, . ¥ : : . $39,532,388 10 


The passenger business on this road, it will appear, reached 
its maximum in the year 1855, since which it has decreased 
$709,582 64. It was less during the past year (1858) by 
$295,962 19 than in 1853, (the first year of its consolidation;) 
or any year since. 


Earnings from all Sources. 


PGR PO a EER EE geet LORE RIES SARS Ret 
1854, i, boop live 20, Alt, eee 5,918,334 50 
FOS GA, o. ukeelome DyeG AE! Baath Weeits | Gpeananeneee 
1856, TI eS ee er 7,707,348 18 
LS57 «ko sn cok EL Ge eR ee 
1858, i I Sled Alp 6,528,412 70 
{65% 5, 6,176,795 96 


—FEstimating September receipts at $700,000, against 
$653,000 for September, 1858, 


39 


It will be observed that the gross earnings for 1859, (fiscal 


year ending September 30,) are smaller than any year since 
1851 : 


YEARS. CAPITAL Srock. INCREASE. DEcRyasz. 
May 17, 1853, $22,213,984 Pants ks hte aes 
Sep. 30, 1854, 23,067,415 853,431 ite 
1855, 24,154,861 1,087,446 e oes 
1856, 24,136,661 Sue OM 18,200 
“ 1857, 24,136,761 eat ee 
“ 1858, 24,182,400 45.739 
ROAR: <. sum tae. \) O1.O86,616 $18,300 


Net increase of Capital Stock in five years, $1,969,516. 


YEARs. BonpvED Dest. INCREASE. DEcREASE. 
May 17, 1853, $10,731,801 oon Sa 
Sep. 30, 1854, 11,947,121 1,215,320 
f 1855, 14,462,742 2,515,621 
«“ 1856, 14,762,898 301,156 Poe 
. 1857, 14,607,510 Se ais 156,388 
% 1858, 14,402,635 Su ocne wee 204,875 
Total, . : $4,032,097 $361,263 


Net increase in five years, $3,670,834 of Bonded Debt. 


Dividends paid in 5 years ending Sep. 30, 1858, $9,790,130 
Gross Earnings in same 5 years,. $34,744,528 
Operating Exp’s do, $18,528,172 
Int. on Sinking Fund, 4,985,095 
Construction account, 17,524,776 
Total Expenditure in five years, . _ 30,988,043 
Applicable to dividends in five years, eae 
about 34 per cent. per annum ; ; 3,756,885 


Deficiciency in five years, j . $6,033,245 


Partially provided for as follows : 


Increase in the Capital Stock, as above, . . $1,969,416 
Increase in the Bonded Debt, . : ; . 38,670,834 


Increase of Stock and Debt, ; . $5,640,250 


i nee fa ee rr yat it Sage 
ata mr terite Me ag 8 
ale Wate ik omerae. (Uh 


> 


i 


as 


- 
$ 


. 
ve 
= 

—_— 


Lithomount 

Pamphlet 
Binders 
Gaylord Bros. 
Makers 


ie 


